Monday, February 24, 2014

Andrew Dwyer - a plaintiff's employment law practitioner - is by all accounts (including a recent adversary with whom I have spoken) a fine lawyer. New Jersey law provides for fee shifting in discrimination cases. Where he has succeeded judges have made findings regarding Dwyer's skill and performance. He has advertised those judicial statements as facts - which they are.But according to the Committee on Attorney Advertising of the New Jersey Supreme Court they are misleading statements that run afoul the Court's Advertising Guideline 3 which the Committee adopted. It provides:

Attorney Advertisements: Use of Quotations or Excerpts From Judicial Opinions About the Legal Abilities of an AttorneyAn Attorney or law firm may not include, on a website or other advertisement, aquotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.

In the Committee's view the statement while factually accurate as reports are misleading regarding their meaning. The statements are findings of fact - not judicial endorsements of a an attorney. To make such an endorsement would be improper for a judge and Dwyer's use of them gives a misleading impression. Dwyer challenged the Guideline in federal courtas a violation of his First Amendment right to commercial speech. The disciplinary stricture was upheld last year in an opinion by by District Judge Faith Hochberg who granted summary judgment to the state. Dwyer has now taken the matter to the Third Circuit Court of Appeals. - GWC

A federal appeals court is pondering whether New Jersey's gag on lawyers using complimentary quotes from judges to advertise their services constitutes an illegal restraint on speech.In a case argued Feb. 18 to the Third Circuit, Newark employment lawyer Andrew Dwyer challenges the constitutionality of Attorney Advertising Guideline 3, adopted in response to his posting on his website of laudatory comments about him from two court opinions, along with the judges' names.In one, Judge Jose Fuentes, then a state judge in Hudson County but now a state appellate judge, called Dwyer "one of the most exceptional lawyers I've had the pleasure of appearing before me."He described Dwyer as "tenacious, professional in his presentation to the Court, a bit too exuberant at times, certainly passionate about his position," and beyond fault or question as to his zeal, loyalty to his client and his intellect.The other quote, from Union County Judge William Wertheimer said Dwyer achieved a "spectacular result" for his client and termed him a "fierce, if sometimes not disinterested advocate."In April 2008, Wertheimer wrote to Dwyer, asking him remove the quote, but Dwyer refused, leading Assignment Judge Walter Barisonek to contact the Committee on Attorney Advertising.The panel spent several years formulating the guideline, with input from Dwyer. As adopted May 24, 2012, bars lawyers and law firms from using quotes or excerpts from oral or written opinions about the lawyer's abilities or services on a website or other advertisement. Only the full text of the opinion with the comments can be presented..Dwyer brought suit to block the guideline just days before its June 1, 2012, effective date on the basis that it would infringe on free speech.U.S. District Judge Faith Hochberg in Newark dismissed the case last June. In her view, the guideline was not a ban on speech but merely a regulation requiring additional disclosure—i.e. the full opinion, to provide context.Without it, "judicial quotations relating to an attorney's abilities could easily be misconstrued as improper judicial endorsement of an attorney, thereby threatening the integrity of the judicial system," she wrote.